The better construction of the statute seems to be, and such is now the construction given to it, in England, (Good v. Watkins, 3 East, 495.) that it rests in the discretion of the judge who tries the cause, to determine, from the testimony, whether the trespass was wilful and malicious ; and if the judge refuses, the K. B. will not interfere. The court will not, therefore, make any order in this case. Some of the cases on the construction of the statute (for the statute of 8 and 9 W. III. and ours is the same) have been rather rigid, both in England and in this court; and if the court were now to give an opinion, we should not be inclined to consider every voluntary trespass, per se, wilful and malicious. This appears to be too narrow a construction} the statute seems to have meant, by the words -wilful and malicious, some act done mala fide, or with an intention to injure or vex the plaintiff, or with a consciousness of violating right.
y Motion denied.